Filed 7/21/17 In re E.L. CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re E.L., a Person Coming Under the Juvenile Court Law.

SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

A.W.,

Defendant and Appellant.


C083784

(Super. Ct. No. JD237079)

Mother of the minor E.L. appeals the juvenile court’s order denying her request for a continuance of the selection and implementation hearing. (Welf. & Inst. Code, §§ 366.26, 395.) We affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency Petition
On March 24, 2016, the Sacramento County Department of Health and Human Services (Department) filed a petition pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), alleging the minor had suffered, or was at substantial risk of suffering, serious physical harm or illness due to mother’s substance abuse problems dating back to 2006. As to the subdivision (b) allegation, the petition alleged mother and the newborn minor tested positive for methamphetamine and marijuana at the time of the minor’s birth; mother lived in a household with people who were using intravenous methamphetamine; mother tested positive for methamphetamine in January 2016; mother had a history of phencyclidine (PCP) use and, in 2006, gave birth to another child who also tested positive for marijuana at the time of delivery; and mother admitted ongoing marijuana use, including during her pregnancy. The petition further alleged mother suffered from untreated mental health issues that impaired her ability to provide adequate care, supervision, and protection for the minor. In particular, mother had been diagnosed with schizophrenia, bipolar disorder, and major depression and had been prescribed medications but had not been using them recently. It was further alleged mother failed to engage in treatment for her mental health issues for approximately two years, and had missed a recent psychiatric appointment. The petition was later amended by striking the allegation mother had been diagnosed with schizophrenia.
As to the section 300, subdivision (j), allegation, the petition alleged the minor’s half siblings K.P. (born in 2003) and J.P. (born in 2001) were placed in protective custody in Oklahoma in 2004, and the minor’s half sibling T.M. (born in 2006) was placed in protective custody in Oklahoma in 2006, all due to mother’s ongoing drug abuse and neglect. Mother failed reunification efforts and her parental rights as to all three children were terminated on August 18, 2008. The children were adopted in September 2009.
Detention Report and Hearing
According to the detention report filed by the Department, the minor was born at 39 weeks gestation, weighed less than four pounds, and tested positive for methamphetamine and marijuana at delivery. Following his birth, the minor was placed on a protective custody hold in the neonatal intensive care unit (NICU) for one week. Mother admitted daily marijuana use by both herself and the minor’s father, and further admitted having received scant prenatal care due to “transportation issues.” Her housing situation was unstable, her mental health issues were untreated, and she was admittedly noncompliant with medication for approximately one year, noting she did not have a local mental health treatment provider. Mother reported having one child with the minor’s father, who was present at the child’s birth and provided money for baby supplies, and several children with another father, who resided in Oklahoma, and with whom she shared custody of the minor’s half siblings.
Mother had prior incidents involving Child Protective Services (CPS) in Oklahoma. In September 2006, mother and another child, T.M., tested positive for marijuana and PCP at the time of delivery. That same month, the minor’s half siblings were removed from mother’s care and placed in protective custody after mother was cited for driving under the influence, assault with a deadly weapon, and fleeing the scene. Mother’s parental rights were terminated as to the minor’s half siblings, who were eventually adopted in September 2009.
The social worker reported she had serious concerns about discharging the minor to the care of either parent due to unstable housing, substance abuse, mother’s mental health issues, and the minor’s fragile medical status that required ongoing medical care. The social worker recommended the minor be detained pending a jurisdiction/disposition hearing.
Both parents attended the March 29, 2016 detention hearing. The juvenile court ordered the minor detained, and ordered reunification services and visitation for both parents.
Jurisdiction/Disposition
On April 8, 2016, the social worker met with mother regarding the allegations in the petition. Mother was cooperative, but terminated the interview upon completion of the discussion regarding the allegations and stated she would make herself available at a later date to discuss her family background. Prior to terminating the interview, mother confirmed the minor tested positive for marijuana and methamphetamine at birth but denied having a substance abuse problem dating back to 2006. Mother claimed she quit smoking marijuana in 2006 after the Oklahoma CPS case, but started drinking alcohol and using marijuana again in 2013 when her mother passed away because she could not accept her mother’s death. She denied drinking alcohol while pregnant with the minor, but admitted she used marijuana consistently and did so while knowingly pregnant. She did not think marijuana would hurt the baby like other drugs would, and claimed she only smoked when she had stomach sickness.
Mother denied using any drugs other than marijuana between 2006 and 2013, but admitted she tested positive for methamphetamine at least twice during the past six months. The first positive test occurred in January 2016 when she tested positive during a job interview. She attributed her positive test to unknowingly using a spoon used by her former roommates to cook the drug, and claimed she was unaware her former roommates used methamphetamine. The second positive test occurred at the minor’s birth. She claimed she shared a marijuana cigarette with another woman and was unaware the cigarette was laced with methamphetamine.
As for the minor’s half sibling, who tested positive for PCP in 2006, mother claimed she knew she was pregnant and smoked marijuana, but claimed she did not realize the marijuana cigarette was laced with PCP. She claimed she “freaked out” and decided to stop using drugs at that time, and denied having a problem with or a long history of use of PCP.
Mother claimed she attended seven or eight prenatal care visits when she first became pregnant with the minor, but missed several appointments due to “leaving the state for a few months.” She claimed she resumed prenatal care once she returned to the state. She did not eat very much during her pregnancy and said she suffers from acid reflux, and claimed she did not believe the minor’s low birth weight had anything to do with her drug use during pregnancy. Mother stated she was willing to participate in random drug testing, complete an alcohol and drug assessment, and follow treatment recommendations to address her drug use.
Mother stated she was first diagnosed with depression and bipolar disorder when she was incarcerated in Oklahoma in 2007. She claimed she heard voices. She received treatment and psychotropic medication until her release several years later. Although she went to counseling after she was released from custody in 2012, she stated she had not seen a mental health professional since her discharge. Mother continued to be depressed and hear voices, and stated she would be willing to participate in a mental health evaluation but did not trust any of the Department’s providers.
On March 24, 2016, mother tested positive for opiates and tetrahydrocannabinol (THC). She missed three drug tests in April 2016. As a result, her testing status was changed to inactive pending her return to a regular testing schedule.
Mother was having regular visitation with the minor. The social worker met with mother once and provided her with referrals to services including parenting, counseling, and drug testing. However, mother refused to meet with the social worker any further and did not make herself available for any future meetings.
Mother was assigned a recovery specialist, who assessed mother for substance abuse counseling. Mother tested positive for marijuana and methamphetamine on April 6, 2016, and continued to have positive marijuana residual tests throughout the next two weeks. The recovery specialist reported mother was noncompliant between April 1 and April 15, 2016, due to a misunderstanding on the number of groups mother was required to attend. Mother attended only one of the required three AA/NA (Alcoholics Anonymous/Narcotics Anonymous) classes.
The Department recommended the juvenile court sustain the allegations in the dependency petition based on mother’s past and current drug use, the minor’s toxicology results, mother’s Oklahoma CPS history, and mother’s positive drug testing results.
According to an addendum report filed May 23, 2016, the recovery specialist reported mother was noncompliant in all areas of treatment, including only attending group sessions two times, testing positive for marijuana and methamphetamine on April 6 and May 6, 2016, testing positive for presumed residual marijuana on April 8, 13, and 15, 2016, and failing to test on numerous occasions. Mother was reportedly difficult to contact or engage, failed to meet upon request, and failed to show up for an appointment to discuss treatment.
The Department noted mother was not entitled to reunification services pursuant to section 361.5, subdivision (b)(11), due to the prior termination of her parental rights to the minor’s half siblings, and further asserted there was clear and convincing evidence offering services to mother would not benefit the minor pursuant to section 361.5, subdivision (c).
At the jurisdiction/disposition hearing on May 24, 2016, the juvenile court heard and denied mother’s request for new counsel and set the matter for a contested hearing.
Mother did not appear at the July 7, 2016 jurisdiction/disposition hearing. She called the court stating she was having car trouble and could not attend. The court continued the matter to July 11, 2016, a date approved by mother’s counsel after conferring with mother.
Mother did not appear at the continued jurisdiction/disposition hearing on July 11, 2016. Mother’s counsel requested another continuance, stating she spoke with mother following the previous continuance and was told mother was not available due to a doctor’s appointment that could not be rescheduled, despite having given prior approval for the continued hearing date. The court denied mother’s request to continue the hearing for lack of good cause, and the hearing commenced in mother’s absence.
Both parents’ respective counsel objected to the court taking jurisdiction over the minor and to the allegations as pled in the petition. Additionally, mother’s counsel argued there was not clear and convincing evidence to support bypassing services to mother, and objected to the setting of a section 366.26 hearing and out-of-home placement of the minor.
The juvenile court found the allegations in the petition true by a preponderance of evidence, bypassed services for both parents, removed the minor from parental custody, and set the matter for a selection and implementation hearing. (§ 366.26.)
Mother filed a notice of appeal of the court’s July 11, 2016 orders. This appeal was dismissed by this court.
Selection and Implementation Report
The selection and implementation report stated mother was initially visiting the minor twice per week in April 2016. However, on July 6, 2016, mother reportedly failed to attend a scheduled visit or call to cancel. On July 15, 2016, mother was unable to attend a scheduled visit “due to not having transportation.” On July 20, 2016, mother’s supervised visitation was modified to once per month. On September 13, 2016, mother reportedly canceled her scheduled visit.
According to the report, the minor was placed with the maternal aunt on April 15, 2016, and was doing well. Both parents made minimal progress in changing the conditions leading to the minor’s removal, and had been inconsistent with visitation. The Department recommended termination of parental rights.
Selection and Implementation Hearing
Mother attended the November 8, 2016 selection and implementation hearing and requested that the matter be set for a contested hearing. The juvenile court set a pretrial conference for December 6, 2016, and a contested selection and implementation hearing for December 14, 2016. Both parents were ordered to appear for both hearings.
Mother did not appear for the December 14, 2016 contested hearing. Mother’s counsel requested a continuance, telling the court: “[Mother] called the Court and stated that she will not be making it to this trial this afternoon. I tried calling her after I found that out. I have not been able to get ahold of her. I don’t know what her reasons are for not being able to make it to court. [¶] I would request a brief continuance so that I can touch base with [mother] and see what the reasons are for why she can’t be here today.” Counsel for father, who was also not present, joined in the request for continuance. The Department and minor’s counsel opposed the request for lack of a showing of good cause by mother.
The court noted, in addition to the fact both parents were present at the prior week’s pretrial hearing when the trial date was confirmed and had been properly noticed for the hearing, it was “somewhat the pattern of these parents, that they appear at some hearings and then they don’t appear for periods of time.” The court further noted the parents had previously requested continuance of the contested jurisdiction hearing to July 11, 2016, and then mother failed to appear despite having been properly noticed. The court denied mother’s request to continue the hearing finding she failed to establish good cause.
After considering the selection and implementation report and the parties’ arguments, the juvenile court found the minor was likely to be adopted, terminated parental rights, and freed the minor for adoption.
Mother filed a timely notice of appeal of the juvenile court’s December 14, 2016 order denying her request for continuance and termination of parental rights.
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her request to continue the December 14, 2016 selection and implementation hearing. She claims she established good cause for a continuance based on her unexpected absence and the necessity of her testimony at the hearing. The claim lacks merit.
Section 352 provides that, “if it is not contrary to the interests of the minor child, a trial court may grant a continuance in a dependency case for good cause shown, for the period of time shown to be necessary, and further provides that when considering whether to grant a continuance the court ‘shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.’ ” (In re B.C. (2011) 192 Cal.App.4th 129, 143-144.)
“In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.” (§ 352, subd. (a).)
In dependency cases, continuances are disfavored, shall be granted only upon a showing of good cause, and shall not be granted if to do so would be contrary to the minor’s interests. (§ 352, subd. (a); In re David H. (2008) 165 Cal.App.4th 1626, 1635; In re Gerald J. (1991) 1 Cal.App.4th 1180, 1186-1187.) Substantial weight must be given to the minor’s need for prompt resolution of his or her custody status, the need to provide the child with a stable environment, and the damage to the minor resulting from prolonged temporary placement. (§ 352, subd. (a).) “ ‘[T]ime is of the essence in offering permanent planning for dependent children.’ [Citations.]” (In re Gerald J., at p. 1187.) The juvenile court is accorded broad discretion in determining whether to grant a continuance. (Id. at pp. 1186-1187; § 352, subd. (a).) We review the denial of a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180; In re B.C., supra, 192 Cal.App.4th at p. 144; In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
Here, mother does not dispute she received sufficient notice of the hearing. As the juvenile court noted, mother and her counsel were present at the pretrial hearing when the date for the contested selection and implementation hearing was confirmed. While the statute contemplates the making of an oral motion at the time of the hearing, mother’s counsel provided no basis for the continuance other than mother’s absence, the reason for which was unknown to counsel at the time of the request. Contrary to mother’s assertion that she called her attorney to say she would not be attending the hearing, mother’s counsel requested the continuance after learning mother had called the court and stated she would “not be making it” to the hearing. Nothing in the record suggests mother provided the court with a reason for her absence, and counsel’s attempt to contact mother by telephone to determine the reason was unsuccessful. As counsel stated, the basis for the brief continuance was to “touch base with [mother] and see what the reasons are for why she can’t be here today.” On this record, we conclude there was no showing of good cause for a continuance.
Mother asserts for the first time on appeal that she had a due process right to be present and testify at the hearing, and she intended to be present and testify. The Department urges mother forfeited the claim for failure to object in the juvenile court. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule.” (In re S.B. (2004) 32 Cal.4th 1287, 1293; see also In re S.C. (2006) 138 Cal.App.4th 396, 406.)
Mother contends her due process claim was preserved for appeal by her counsel’s request for a continuance. However, she cites no authority, and we are aware of none, to support her assertion. Even assuming she preserved her claim by an objection in the juvenile court, mother “cannot prevail without establishing that she was prejudiced by the alleged error.” (In re S.C., supra, 138 Cal.App.4th at p. 407.)
It is undisputed mother had a right to appear and be heard before her parental rights were terminated. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 547; In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) While mother was absent from the hearing, mother’s counsel was present and ready to proceed with the contested hearing. In the absence of any explanation whatsoever for mother’s absence, there was no good cause to continue the hearing.
The record does not support mother’s claim she diligently appeared at all necessary hearings throughout the proceedings with the exception of two, for which she provided “advance notice of a good reason why she could not attend.” Mother did not appear for the July 7, 2016 jurisdiction/disposition hearing. She called the court and stated she was having car trouble and could not attend. After speaking with mother, mother’s counsel confirmed mother was amenable to July 11, 2016 for the continued hearing. Nonetheless, mother did not appear for the July 11, 2016 continued hearing. Her counsel stated she spoke with mother “almost immediately after the Court continued this trial to today” and was told mother could not make the July 11, 2016 date due to a doctor’s appointment she could not reschedule. Mother attended the November 8, 2016 selection and implementation hearing and requested a contested hearing, yet did not appear for the December 14, 2016 contested hearing with no notice to her counsel and no explanation to counsel or the court.
Mother claims there is no evidence a short continuance would have been contrary to the minor’s interests because the minor’s case had not been subject to any substantial delay, nor had the minor been subject to prolonged temporary placements or unstable environments. Given mother’s pattern of last-minute absenteeism, and the fact mother’s counsel had no idea why mother was absent from the hearing, it is unknown whether the continuance would have been brief. The same is true as to mother’s assertion it was “likely” a continuance of a few days or a week would have sufficed to allow for her presence at the hearing. This claim is speculative given the absence of any explanation for her inability to attend the hearing. In any event, the juvenile court had no duty to grant a continuance given mother’s failure to show good cause. (§ 352, subd. (a).)
With regard to prejudice, mother claims her presence and testimony at the selection and implementation hearing would have achieved a different result because she was going to argue the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)), and there was a strong likelihood the court would have found the exception applied. She offers no facts in her opening brief to support that claim. In her reply brief, mother contends she would have testified the beneficial relationship exception applied because (1) she maintained regular visitation with the minor, and (2) the minor would benefit from a continuing relationship with her. The record belies her claim. The minor was taken from mother at birth after testing positive for methamphetamine and marijuana and, after a brief confidential placement, was placed with the maternal aunt on April 15, 2016, where the child remained as of the time of the selection and implementation hearing. Mother began twice weekly visitation in April 2016, but failed to attend or call to cancel a scheduled visit on July 6, 2016. She was unable to attend a July 15, 2016 visit due to “not having transportation.” For reasons not apparent from the record, mother’s supervised visits were reduced to once a month starting July 20, 2016. Thereafter, she canceled a scheduled visit on September 13, 2016.
Mother asserts there could have been other visits not documented in the report, and particularly for the months of August and October 2016, and claims she only missed three visits during the entirety of the proceedings and thus “likely maintained consistent visitation.” Contrary to mother’s assertions, the social worker reported mother had been inconsistent with visitation. In any event, even assuming mother was consistent with visitation, the record does not support her assertion the minor would benefit from a continued relationship. As discussed above, the minor was removed at birth and soon placed with the maternal aunt, where the child remained throughout the dependency proceedings. The minor was doing well in his placement, “the only home he has known.” The social worker reported the minor was forming a positive connection with the maternal aunt, who was nurturing toward the minor, committed to providing permanency for the child, and “very dedicated to meeting his needs.” On the other hand, mother made minimal progress in changing the conditions that led to the minor’s removal and, other than inconsistent visitation, played a minimal role in the minor’s life. Despite mother’s claim that her testimony on this point was vital to determining whether the beneficial parental relationship exception applied, there is no evidence in the record to support this exception and mother has not offered any information to supplement the evidence in the record. Based on the record, mother has not demonstrated she was prejudiced by the juvenile court’s denial of her counsel’s request for a continuance.
We conclude the juvenile court acted well within its discretion in denying mother’s counsel’s oral request to continue the section 366.26 hearing.
DISPOSITION
The juvenile court’s order is affirmed.



/s/
HOCH, J.



We concur:



/s/
RAYE, P. J.



/s/
NICHOLSON, J.